Gemi Investors Pty Limited v Cetin

1. [1]

   The plaintiff and cross-defendant in these proceedings, Gemi Investors Pty Ltd (Gemi), seeks an order pursuant to s 66G of the Conveyancing Act 1919 (NSW) that the whole of the land at 1/21 Railway Parade, Lidcombe in New South Wales (the Property) be vested in trustees on statutory trust for sale.

2. [2]

   The Property is owned by:

   1. (1)

      the first defendant and first cross-claimant, Mr Rahmi Cetin;

   2. (2)

      the second defendant and second cross-claimant, Mrs Nurten Cetin;

   3. (3)

      the third defendant, Mr Mehmet Cetin; and

   4. (4)

      the fourth defendant, Mrs Sevda Cetin,

   5. (5)

      as joint tenants.

3. [3]

   Gemi claims to be entitled to an order under s 66G on the basis that it has a charge over the interests of Mr Rahmi Cetin and Mrs Nurten Cetin in the Property pursuant to charging clauses in guarantees that each of them entered into on or about 4 October 2018, by which they personally guaranteed the payment of all monies owing by Cetin Property Group Pty Ltd (CPG) to Gemi (the Guarantees). Gemi claims that CPG is indebted to it pursuant to a loan agreement between Gemi (as lender) and CPG (as borrower) dated 10 October 2018 (the Loan and the Loan Agreement), as varied by a deed of variation dated 29 January 2019 (the Variation Deed).

4. [4]

   Mr Rahmi Cetin is the sole director of CPG. He is also a shareholder of that company, together with his wife Mrs Nurten Cetin, and her parents Mr Zeki Coskun and Mrs Meryem Coskun.

5. [5]

   Mr Mehmet Cetin and Mrs Sevda Cetin are not alleged to have been parties to, or to have had any involvement in, the Loan Agreement, the Variation Deed or the Guarantees. They have been joined as defendants to these proceedings because their interests in the Property will be affected if the Court makes the order under s 66G appointing trustees on statutory trust for sale. Gemi seeks ancillary orders that the sale proceeds be applied:

   1. (1)

      firstly, in payment of the proposed trustees’ expenses and costs of selling the Property;

   2. (2)

      secondly, by paying one quarter of the remaining sale proceeds to Mr Mehmet Cetin and one quarter to Mrs Sevda Cetin;

   3. (3)

      thirdly, by applying the remaining half share of the sale proceeds to repay the amount owing by Mr Rahmi Cetin and Mrs Nurten Cetin secured by the Charges given in their respective Guarantees; and

   4. (4)

      fourthly, by paying any remainder to Mr Rahmi Cetin and Mrs Nurten Cetin in equal shares.

6. [6]

   Mr Rahmi Cetin and Mrs Nurten Cetin deny that CPG executed the Loan Agreement and Variation Deed, and deny that they executed the Guarantees. They contend that the signatures on those documents that appear to be their signatures, were not in fact made by them. That is the sole basis of their contention in these proceedings that they did not know about the Loan, the sole basis on which they oppose the relief sought by Gemi, and the sole basis of their cross-claim for declarations to the effect that they and CPG are not parties to and did not execute those documents. [1]

7. [7]

   Mr Mehmet Cetin and Mrs Sevda Cetin did not file any defence in the proceedings. A solicitor appeared for them on the first three days of the final hearing, before informing the Court on the third day that they would abide by the orders of the Court. The solicitor then sought and was granted leave to be excused from further attendance.

8. [8]

   In these reasons, references to Mr Cetin and Mrs Cetin should be understood as references to Mr Rahmi Cetin and Mrs Nurten Cetin, who were the active defendants in the proceedings. Where it is necessary to refer to Mr Mehmet Cetin and Mrs Sevda Cetin, I will use their first names in order to distinguish them from Mr Rahmi Cetin and Mrs Nurten Cetin.

Summary of evidence

1. [9]

   Mr Cetin is a carpenter by trade.

2. [10]

   Mr Cetin gave evidence that, in 2015, he sought finance from National Australia Bank to purchase a property at 23 Railway Parade in Lidcombe for the purpose of developing townhouses (the Project). It was in that context that he met Mr Kadir Ilgun, who was a manager at National Australia Bank at that time. According to Mr Cetin’s evidence, Mr Ilgun was involved in the financial side of the Project thereafter. Mr and Mrs Cetin gave evidence that it was Mr Ilgun who arranged for CPG to be incorporated as the vehicle to undertake the Project.

3. [11]

   Mr and Mrs Cetin described Mr Ilgun as CPG’s finance broker during the period of the Project. Ms Nicole Khattar and Mr Mohammed Sowaid worked with Mr Ilgun at his firm, Finance & Property Specialists (FPS). Mr Cetin gave evidence in relation to Mr Ilgun that “whatever he decided well we just follow him”. Mr Cetin also gave evidence that Mr Ilgun had accountants and “we just followed his accountants because he’s our broker”. According to Mr Cetin, Mr Ilgun would have engaged those accountants to prepare any financial statements for CPG. When asked why Mr Ilgun would have dealt with accountants in relation to the financial affairs of CPG, of which Mr Cetin was the sole director, Mr Cetin said that Mr Ilgun “was doing basically the whole thing”.

4. [12]

   CPG was incorporated on 30 June 2016 and acquired the land at 23 Railway Parade. Mr Cetin gave evidence that CPG undertook the Project throughout 2018 and 2019, and that it was completed in about late 2019.

5. [13]

   Mr Cetin gave evidence that CPG obtained a construction loan for the Project from Balance Securities. Mr Ammar Jamal-Eddine of Concordia Legal acted as CPG’s solicitor in relation to that loan.

6. [14]

   On 6 April 2018, CPG (as borrower) entered into two loan agreements with Property Management Corporation Pty Ltd (PMC). The first agreement provided for a loan of $245,000, and the second agreement provided for a loan of $105,000. Both loans were expressed to be “for the period of the construction at 23 Railway Parade Lidcombe 2141”. There is no provision for the borrower to pay interest. Each loan agreement states that the loan is guaranteed by Mr Ilgun. Mr Cetin did not give evidence about those loan agreements, but Mrs Cetin accepted that she had signed them. Mrs Cetin could not recall the reason for CPG taking out the loans from PMC, but gave evidence that she assumed that it was for the Project.

7. [15]

   Ms Fatmagul Ilgun was the sole director and shareholder of PMC at the time that the 6 April 2018 loan agreements were entered into. According to Mr Cetin’s evidence, Ms Fatmagul Ilgun is the wife of Mr Kadir Ilgun.

8. [16]

   Mr Cetin gave evidence that the Project was slightly over budget in September 2018.

9. [17]

   On 20 September 2018, Mr Andrew Margi of First Finance Choice (FFC) sent an email to Mr Michael Cooper and Mr George Fleming of Gemi, copied to Mr Sowaid of FPS and Mr Gerrard Toltz of Toltz Lawyers. Toltz Lawyers were acting for Gemi at that time. Mr Margi’s email stated:

10. [18]

    I note that the loan amount of $350,000 stipulated in Mr Margi’s email was the total sum lent by PMC to CPG under the two loan agreements signed on 6 April 2018. [2]

11. [19]

    Either shortly before or shortly after he received Mr Margi’s email, Mr Cooper attended a meeting at Gemi’s offices with Mr Toltz, Mr Margi, Mr Ilgun, Mr Cetin and another gentleman. Mr Cooper did not recall Mr Fleming attending the meeting, but accepted in cross-examination that it was possible that Mr Fleming was present.

12. [20]

    Mr Cooper gave evidence that Mr Margi was a broker who had worked closely with Gemi over many years, and that it was common practice for a broker seeking finance for a client to “tap another finance broker”. In Mr Cooper’s experience, both brokers would meet with the potential lender in those circumstances. In this instance, Mr Margi introduced Mr Ilgun and Mr Cetin to Gemi to discuss Mr Cetin’s requirement for a loan. Mr Cooper described Mr Ilgun as “representing” Mr Cetin at the meeting.

13. [21]

    In his affidavit sworn on 10 June 2022, Mr Cooper gave an account of the discussion at the meeting, in which he asked Mr Cetin to summarise the Project and its status. Mr Cetin told him that the development was in Lidcombe, that it was slightly over budget and that additional funds were required to complete it. Mr Ilgun said that he had provided funds to the Project and required some of those funds to be returned now. Mr Cooper asked Mr Cetin if this was correct, and he confirmed that it was. According to Mr Cooper, the discussion then continued to the following effect:

14. [22]

    Mr Cooper was not shaken on his recollection of the discussion in any material way during cross-examination. He described the discussion as consistent with the subjects typically covered in any discussion between Gemi and a potential borrower. He gave evidence that he recalled Mr Cetin being present for the whole of the discussion, and adhered to his evidence that Mr Ilgun had said that he had put substantial funds into the Project and was looking to get some of those funds out.

15. [23]

    Mr Cooper was cross-examined about the fact that the meeting did not include any discussion about guarantees. He confirmed that there was no such discussion, and gave evidence that it was Gemi’s standard practice to require guarantees from directors and shareholders of borrowers. It was Mr Cooper’s understanding that Toltz Lawyers would have done a company search of the borrower to identify who those persons were.

16. [24]

    Mr Cooper was also cross-examined about the fact that the meeting did not include any discussion about the amount by which the loan amount would exceed $350,000 once interest and costs were capitalised. He gave evidence that this amount would have been calculated after the meeting and included in the loan documents. If the borrower had not agreed with the amount, there would have been a subsequent discussion.

17. [25]

    It was put to Mr Cooper in cross-examination that the meeting did not result in any agreement about a loan to be made to Mr Cetin or any company associated with him. Mr Cooper replied that it was clear that everyone was in the room for the purpose of seeking a loan. He described the meeting as an informal meeting that was the first substantive step in the process of CPG applying for a loan. It was his recollection that there was an intention to move forward with the loan at the conclusion of the meeting, albeit that further documents and information were required. That further information was subsequently provided, Gemi undertook a further assessment, and proceeded to agree to make a loan and to prepare loan documentation.

18. [26]

    In his affidavit sworn on 21 June 2021, Mr Cetin denied signing any documents for a loan from Gemi, denied borrowing or receiving money from Gemi, and denied granting a charge over his property. Mr Cetin did not mention the September 2018 meeting in his 21 June 2021 affidavit.

19. [27]

    Mr Cetin first acknowledged attending the September 2018 meeting with Gemi in his affidavit sworn on 10 July 2022, replying to Mr Cooper’s affidavit. Mr Cetin deposed that he had attended the meeting together with Mr Ilgun, and at Mr Ilgun’s request. Mr Cetin deposed that he had asked Mr Ilgun prior to the meeting: “Why do we need to get any other loan?”. According to Mr Cetin, Mr Ilgun had replied: “I need you to come along and explain the project”. In cross-examination, Mr Cetin confirmed that he knew that they were attending the meeting for the purpose of getting a loan for CPG to finish the Project. Mr Cetin also gave evidence that, at that time, CPG needed funds in order to finish the Project.

20. [28]

    In his 10 July 2022 affidavit, Mr Cetin deposed that Mr Fleming attended the meeting on behalf of Gemi. Mr Cetin disputed that Mr Cooper attended the meeting. As I have referred to above, Mr Cooper was cross-examined at some length about his recollection of the meeting. It was not put to Mr Cooper that he did not attend the meeting.

21. [29]

    Mr Cetin also disputed that Mr Margi, or Mr Toltz had attended the meeting. Mr Cetin also deposed that he had never engaged Mr Margi to act for him or for CPG as a broker. Mr Ilgun had acted as the finance broker for Mr Cetin and CPG since 2015.

22. [30]

    Mr Cetin gave evidence that Mr Ilgun said during the September 2018 meeting that, “We are going to borrow money for Rahmi and Cetin Property Group”. According to Mr Cetin’s affidavit sworn on 10 July 2022, this was followed by some discussion about how the Project was progressing. Mr Cetin deposed that he described the stage that the Project works had reached but denied that he was asked any questions or that there was any discussion in the meeting about the financial details of the Project “or what was being borrowed and on what basis”. In cross-examination, Mr Cetin maintained that there was no discussion about the financial details of the Project.

23. [31]

    Mr Cetin denied that Mr Ilgun had said in the meeting that he had provided funds for the Project and required some funds to be returned now. Mr Cetin also denied that he, Mrs Cetin or CPG had borrowed funds from Mr Ilgun. However, as referred to at [14]-[15] above, Mrs Cetin acknowledges signing agreements for loans totalling $350,000 from PMC to CPG on or about 6 April 2018. Mr Ilgun’s wife is the sole director and shareholder of PMC, and the loan agreements stated that Mr Ilgun personally guaranteed the loans.

Events following the September 2018 meeting

1. [32]

   At 10.21am on 27 September 2018, Mr Margi sent an email to Mr Toltz, Mr Cooper, and Mr Fleming, which was copied to Mr Sowaid and Mr Ilgun. The subject of Mr Margi’s email was “RE CETIN 350k”. The email attached certain documents and evidence of a payment of $5,500, “so you commence docs ASAP”. The email also stated that Mr Margi had requested appraisals for properties at 25 Railway Parade and 1A Helena Street. At that time, 25 Railway Parade, Lidcombe was the home of Mr and Mrs Cetin, and 1A Helena Street, Auburn was the home of Mr and Mrs Coskun.

2. [33]

   Appraisals of the current market value of those two properties had in fact already been prepared on 26 September 2018 on the letterhead of First National Real Estate Waters & Carpenter, and signed with the initials “RC” on behalf of Mr Neil Wong, the sales director of that agency. Mr Sowaid forwarded the appraisals to Mr Margi, Mr Toltz, Mr Fleming and Mr Cooper by email at 10.27am on 27 September 2018.

3. [34]

   In September 2018 Mrs Cetin worked at First National Real Estate Waters & Carpenter. Mr and Mrs Cetin’s daughter, Ms Reyhan Cetin, also worked at that agency at that time.

4. [35]

   Mr Cetin gave the following evidence in cross-examination (emphasis added):

5. [36]

   Mrs Cetin gave evidence in cross-examination that Mr Ilgun and Mr Sowaid requested the appraisals from her, and she in turn requested her managers at First National Real Estate Waters & Carpenter to provide the appraisals. The appraisals were signed by Ms Reyhan Cetin, who was the assistant to Mr Neil Wong at the time. Mrs Cetin gave evidence that she did not know why, and she was not told why, Mr Ilgun and Mr Sowaid wanted the appraisals. However, Mrs Cetin understood that property appraisals or valuations were part of the process of procuring a loan. She recalled that they had obtained valuations earlier in 2018 as part of the approval process for previous loans. Mrs Cetin acknowledged that a loan application was a possible reason why Mr Ilgun and Mr Sowaid asked her to arrange the appraisals, and was unable to identify any other reason why the appraisals might have been required in September 2018.

6. [37]

   At 8.27pm on 27 September 2019, Mr Toltz sent an email to Mr Margi and Mr Sowaid, attaching a letter in relation to the proposed $350,000 loan to CPG. The letter was not in evidence, but it appears from subsequent email correspondence that the letter contained an offer or proposal for a loan and set out Gemi’s settlement requirements.

7. [38]

   On 3 October 2018, Ms Lucy Byrne of Toltz Lawyers sent an email to Mr Cooper attaching a loan agreement for a loan from Gemi to CPG for Mr Cooper’s review.

8. [39]

   At 2.46pm on 8 October 2018, Ms Khattar sent an email to Ms Byrne, copied to Mr Ilgun and Mr Jamal-Eddine, entitled “Loan to Cetin Property Group”. The email attached scanned copies of the Loan Agreement, Guarantees, and various other documents relating to the Loan, each of which had been signed (or appeared to have been signed) by the borrower or relevant guarantor. Each signature had been witnessed by Mr Jamal-Eddine. Ms Khattar’s email stated that the documents would be delivered to Toltz Lawyers’ offices.

9. [40]

   At 3.04pm on 8 October 2018, Mr Jamal-Eddine sent an email to Ms Byrne (copied to Mr Toltz, Mr Ilgun and Ms Khattar) attaching an updated title search and stating:

10. [41]

    At 9.51am on 10 October 2018, Ms Byrne (Toltz Laywers) sent an email to Mr Fleming, Mr Cooper, and Ms Danielle Patterson of Gemi, advising that the net loan funds of $350,000 were to be transferred to a bank account in the name of PMC, being the same bank account that had been stipulated in the email that Ms Byrne had received from Mr Jamal-Eddine on 8 October 2018.

11. [42]

    At 9.52am on 10 October 2018, Mr Ilgun sent an email to Mr Margi, Mrs Cetin, Mr Jamal-Eddine, Mr Toltz, Mr Cooper, and Mr Fleming with the subject: “Bank account details Cetin Group”. Mr Cetin gave evidence that Mr Ilgun would send any emails about the development to Mrs Cetin rather than to him because Mr Ilgun knew that Mr Cetin is not good with emails. Mr Ilgun’s email simply set out the same PMC bank account details that had been set out in Mr Jamal-Eddine’s 8 October 2018 email to Ms Byrne and others, including “Property Management Corp” as the account name.

12. [43]

    Mrs Cetin confirmed in cross-examination that the email address to which Mr Ilgun’s email was sent was her personal email account that she used in September and October 2018. Her emails were available to her on her mobile phone. Mrs Cetin could not recall whether there was a notification system alerting her to incoming emails on her phone. She checked her emails on a regular basis, but could not recall how frequently. Mrs Cetin could not recall seeing the email that Mr Ilgun sent to her on 10 October 2018. However, if she had seen the email at the time, she would not have asked any questions about the bank account details because “we trusted Kadeir to be – if were refinancing or if we were getting a loan, that he would be doing the process of getting the loan.”

13. [44]

    A St George online banking transaction record tendered in these proceedings records that Gemi paid the sum of $350,000 into PMC’s bank account on 10 October 2018.

14. [45]

    The Loan Agreement is dated 10 October 2018. The named parties are Gemi (as lender), CPG (as borrower) and Mr Cetin, Mrs Cetin, Mr Coskun and Mrs Coskun (as guarantors). It provides for a loan of $426,923 for a term of three months, secured by guarantees of each of the four guarantors and unregistered second mortgages over properties at 23 Railway Parade and 25 Railway Parade, Lidcombe and 1A Helena Street, Auburn. The principal sum of $426,923 comprised the $350,000 loan amount that had been discussed with Gemi in September 2018, plus fees and capitalised interest totalling $76,923. There was provision for the term of the loan to be extended by an additional five months.

15. [46]

    The execution pages of the Loan Agreement provided for execution by CPG in accordance with s 127 of the Corporations Act by Mr Cetin as its sole director and secretary, and for execution by each of the four named guarantors. A signature appears above Mr Cetin’s name in his capacity as sole director of CPG and in his capacity as guarantor. A signature appears above the name of each of the other three guarantors. Each signature appearing above the name of a guarantor has been witnessed, or appears to have been witnessed, by Mr Jamal-Eddine.

16. [47]

    Each of the four Guarantees is dated 4 October 2018. The parties are the individual guarantor and Gemi (as creditor). The “Creditor” is defined as Gemi and the “Debtor” is defined as CPG. The term “Guaranteed Money” is defined as all money which CPG owes or may owe in the future to Gemi. The term “Collateral Security” is defined as including a guarantee or indemnity granted by any person to Gemi to secure payment of any Guaranteed Money. Pursuant to clause 4 of each Guarantee, each guarantor guarantees due and punctual payment of the Guaranteed Money.

17. [48]

    Clause 7 of each Guarantee provides:

18. [49]

    Clause 10 of each Guarantee provides that the Guarantor must pay to the Creditor all amounts payable under the Guarantee on demand.

19. [50]

    Clause 14.1 of each Guarantee provides that the agreement is a continuing security that is discharged only when CPG discharges the guarantor in writing. Clause 15 relevantly provides:

20. [51]

    The execution clause of each Guarantee provides for execution by the relevant guarantor. Each Guarantee bears a signature above the name of the guarantor and each of those signatures has been witnessed, or appears to have been witnessed, by Mr Jamal-Eddine.

21. [52]

    As I have already mentioned, the signed Loan Agreement and Guarantees had been sent to Gemi’s solicitors by Ms Khattar of FPS by email on 8 October 2018. Ms Khattar’s email also attached a Guarantee and Indemnity between Mr Ilgun (as guarantor) and Gemi (as creditor) in respect of all money owed by CPG to Gemi, signed by Mr Ilgun, witnessed by Ms Khattar, and dated 6 October 2018.

22. [53]

    In their affidavits sworn on 21 June 2021 and 18 June 2021 (respectively), each of Mr and Mrs Cetin denied attending Mr Jamal-Eddine’s office on 4 October 2018 and deposed that they did not sign the Guarantees on that date or on any other date. Each of Mr and Mrs Cetin also denied signing the Loan Agreement or any documents for a loan from Gemi. Each of them denied any knowledge of a loan from Gemi to CPG, and deposed that, to the best of their knowledge, CPG did not receive $426,923 on 10 October 2018. In their affidavits, they describe Gemi’s claim as “fraudulent”. Mr and Mrs Cetin’s affidavits are in almost identical terms. In their affidavits sworn on 5 February 2023, Mr and Mrs Cetin each denied (again, in identical terms) that Mr Jamal-Eddine advised them in relation to any facility or guarantee with Gemi.

23. [54]

    Mr Cetin was shown the execution pages of the Loan Agreement during cross-examination, without the cross-examiner identifying that those pages were from the Loan Agreement. Mr Cetin gave evidence that the signatures appearing above both places in which his name was printed on those pages were probably his signature. Mr Cetin was more definite about the signature in the execution block for him in his personal capacity as guarantor. In relation to the signature appearing above his name as sole director and secretary of CPG, Mr Cetin gave evidence it looked similar to his signature, and might indeed be his signature.

24. [55]

    In their affidavits sworn on 9 February 2023, each of Mr and Mrs Coskun has denied that the signatures above their names on the Loan Agreement and the relevant Guarantees are their signatures. Each of them has denied signing any loan agreements or giving any guarantee and indemnity in favour of Gemi. The defendants tendered travel documents relating to Mr and Mrs Coskun and copies of their Australian passports which establish that they departed Australia on 18 June 2018 and were due to return on 12 March 2019. Mr and Mrs Coskun gave evidence that they extended their stay overseas and did not in fact return to Australia until 7 May 2019. The execution clauses of the Loan Agreement and Guarantees relating to Mr and Mrs Coskun state that those documents were signed, sealed and delivered in the presence of the witness, Mr Jamal-Eddine. The documents bear no indication that any of the signatures were witnessed electronically.

25. [56]

    The Variation Deed is dated 29 January 2019. The named parties are Gemi (as lender), CPG (as borrower) and Mr Cetin, Mrs Cetin, Mr Coskun and Mrs Coskun (as guarantors). The Variation Deed provides for the term of the Loan Agreement to be extended by a period of five months, and provides that the Loan is increased by the “Additional Facility” in the sum of $62,115.38. That sum comprises the lender’s and broker’s fees totalling $35,000, the lender’s legal fee of $1,500 and interest capitalised in advance for the additional five month period in the sum of $25,615.38.

26. [57]

    The execution clause of the Variation Deed provided for execution by CPG in accordance with s 127 of the Corporations Act by Mr Cetin as its sole director and secretary, and for execution by each of the four named guarantors. A signature appears above Mr Cetin’s name in his capacity as sole director of CPG. A signature appears above the name of each of the four guarantors. Each signature appearing above the name of a guarantor has been witnessed, or appears to have been witnessed, by Mr Jamal-Eddine.

27. [58]

    In their affidavits sworn on 21 June 2021 and 18 June 2021 (respectively), each of Mr and Mrs Cetin deposed that the signature appearing to be theirs is not in fact their signature. Each of Mr and Mrs Cetin also deposed that CPG did not apply for the Additional Facility and did not receive any of the funds referred to in the Variation Deed. As I have already mentioned, those affidavits sworn by Mr and Mrs Cetin are in almost identical terms.

28. [59]

    In their affidavits sworn on 9 February 2023, each of Mr and Mrs Coskun has denied that the signatures purporting to be theirs on the Variation Deed are their signatures. As referred to at [55] above, Mr and Mrs Coskun were overseas at the time that their signatures were purportedly witnessed on the Loan Agreement, Guarantees and Deed of Variation.

29. [60]

    Mr Cetin gave evidence that, towards the end of the Project in 2019, Balance Securities had stopped releasing funds from the construction loan, which had resulted in builders ceasing work on the Project. More money was required to finish the Project so that the townhouses could be sold.

30. [61]

    It appears from email correspondence between Mr Ilgun and Mr and Mrs Cetin in July and August 2019 that a dispute was developing between them at that time, about financial contributions totalling $1,402,789 that Mr Ilgun claimed to have made to the Project.

31. [62]

    Notwithstanding these difficulties, the Project was completed in late 2019, according to Mr Cetin’s evidence. [3] Although Mr Cetin has given evidence acknowledging that CPG was in need of further funds in September 2018 in order to complete the Project, and acknowledging that he attended the meeting at Gemi’s office for the purpose of seeking a loan for that purpose, [4] Mr Cetin has maintained that Gemi did not make any loan to CPG. [5] Mr Cetin has not given evidence of any alternative source of funds used by CPG to complete the Project.

32. [63]

    On or about 8 November 2019, Mr and Mrs Cetin attended the office of Toltz Lawyers and inspected Gemi’s file, including the Loan Agreement, the Guarantees, and the Variation Deed. The evidence does not disclose what prompted Mr and Mrs Cetin to undertake this inspection. Given that the term of the Loan Agreement (as varied) had expired in June 2019, I infer that Mr and Mrs Cetin had received some communication from Gemi about the Loan and the amount outstanding, including interest that was accruing.

33. [64]

    In her affidavit sworn on 18 June 2021, Mrs Cetin gave evidence that she took photos and notes of the documents in the file provided to them at Toltz Lawyers’ offices, and that she and Mr Cetin reviewed all of them that night. Mrs Cetin deposed:

34. [65]

    Mr Cetin gave evidence in almost identical terms in his affidavit sworn on 21 June 2021.

35. [66]

    In their affidavits sworn on 21 June 2021 and 18 June 2021 (respectively), each of Mr and Mrs Cetin deposed that they had “confronted” Mr Jamal-Eddine by telephone in about December 2019. Each of Mr and Mrs Cetin gave an identical account of their conversation with Mr Jamal-Eddine:

36. [67]

    Insofar as Mr Cetin is aware, Mr Jamal-Eddine continues to practise as a solicitor. The defendants did not adduce any evidence from Mr Jamal-Eddine in these proceedings, notwithstanding their evidence that he had indicated his willingness to confirm in the event of “any legal case” that the signatures purporting to be his are not in fact his signatures.

37. [68]

    As referred to at [48] above, each of the Guarantees contained a charging clause pursuant to which each Guarantor charged any interest in land in favour of Gemi as security for all monies payable to Gemi under the Guarantee. Gemi had lodged caveats against the title to Mr and Mrs Cetin’s home at 25 Railway Parade, which was adjacent to the Project site at 23 Railway Parade. Mr and Mrs Cetin were endeavouring to sell their home in late 2019. On 5 December 2019, Mrs Cetin sent an email to Mr Toltz, Ms Byrne, and Mr Margi requesting that Gemi remove the caveats, and offering to pay Gemi 50 per cent of the net sale proceedings. Mrs Cetin’s email stated: [CB3.248]

38. [69]

    On 26 February 2020, Mr James Frank, solicitor, wrote to Mr Jamal-Eddine in the following terms:

39. [70]

    I note that the letter does not suggest that any of the signatures on the Loan Agreement or related transaction documents were not genuine, or that any of Mr Frank’s clients did not in fact enter into the Loan Agreement, the Guarantees, or the Variation Deed. On the contrary, the letter seeks documents evidencing legal advice “given to our clients in their capacity as borrower and/or guarantors”.

40. [71]

    Mr Jamal-Eddine replied on 4 March 2020, stating that he had recently moved offices and would be in a position to respond to Mr Frank’s inquiry when he had searched and retrieved “the clients files” from storage.

41. [72]

    Mr Jamal-Eddine wrote to Mr Frank again on 13 April 2020. Mr Jamal-Eddine was responding to a letter from Mr Frank dated 16 March 2020, which was not in evidence but which I infer from the response was a request for documents with reference to rule 5.3 of the Uniform Civil Procedure Rules 2005 (NSW), which confers power on the Court to make preliminary discovery orders against prospective defendants in certain circumstances. Mr Jammal-Eddine’s response declined to provide the documents requested, but invited Mr Frank to make a further request identifying the prospective defendant and the nature of the claim for relief that the applicants for preliminary discovery may be entitled to make.

42. [73]

    On 14 April 2020, Mrs Cetin sent the following text message to Mr Hamish Tweedy of Gemi:

43. [74]

    Mr Tweedy agreed to Mrs Cetin’s proposal.

44. [75]

    Both Mr and Mrs Cetin participated in the telephone discussion with Mr Tweedy on 15 April 2020. Mr Cetin gave evidence in cross-examination confirming that he and Mrs Cetin had reviewed the Loan Agreement and Guarantees some months earlier, and that lawyers were acting for them in relation to those documents at the time they spoke with Mr Tweedy.

45. [76]

    Mr and Mrs Cetin each made some handwritten notes during their conversation with Mr Tweedy. Mrs Cetin typed up a note of the discussion later that evening, and then discarded the handwritten notes.

46. [77]

    Mrs Cetin’s typed noted was produced in response to a notice to produce issued by Gemi, and was admitted into evidence during the hearing. It was common ground between the parties that the typed note is a relatively contemporaneous record of the discussion between Mr and Mrs Cetin and Mr Tweedy. Mr Cetin said in cross-examination that he had no reason to doubt the accuracy of the typed note as a record of the conversation, but that “I just can’t remember a lot of the things, that’s all. I’m trying to gather a lot of things.” Gemi did not adduce any evidence from Mr Tweedy to contradict the account of the discussion recorded in the typed note.

47. [78]

    The typed note records salient aspects of the discussion in the following terms: [6]

48. [79]

    In her affidavit sworn on 21 June 2021, Mrs Cetin gave the following account of the conversation that she and Mr Cetin had with Mr Tweedy on 15 April 2020:

49. [80]

    In his affidavit sworn on 21 June 2021, Mr Cetin deposed that he was present during that telephone call with Mr Tweedy. Mr Cetin set out what he described as extracts from “the contemporaneous notes we took of the conversation”. Those extracts are in identical terms to Mrs Cetin’s account of the conversation referred to immediately above.

50. [81]

    The account of the conversation in those affidavits sworn by Mr and Mrs Cetin excludes the part of the conversation recorded in the typed notes in which Mrs Cetin acknowledged that they had undertaken an investigation and ascertained that the Loan had “obviously … been used in some way for our construction”. Their affidavits also excluded Mr Cetin’s complaint made to Mr Tweedy that Gemi should have communicated with him directly about the repayments required to be made “as soon as I took the loan out”. The affidavits excluded that part of the conversation in which Mrs Cetin discussed with Mr Tweedy her calculations of how much was owing to Gemi in respect of the Loan in late 2019, and the fact that the amount had been rising since then because she had not been able to pay any instalments. The affidavits also omitted that Mr Cetin had asked Mr Tweedy about the current balance of “our loan”. Mr and Mrs Cetin also excluded the part of the conversation recorded in the notes in which Mr Tweedy put to Mr and Mrs Cetin directly that “you’ve signed the loan you saw the loan terms and conditions and I’m trusting you were legally represented at the time that you signed the loan”, and Mrs Cetin replied that “there was multiple signatures done”. The typed notes do not record Mr or Mrs Cetin conveying to Mr Tweedy at that time or at any other point in the conversation their claim that their signatures, and the signatures of Mrs Cetin’s parents, on those documents had been forged.

51. [82]

    Mr Cetin was cross-examined about the conversation, and about the material in the typed note that had been excluded from the “extracts” in his affidavit. He did not offer any explanation for the exclusion of that material. When asked whether it was misleading to exclude the part of the conversation in which Mrs Cetin had acknowledged that the Loan had been used for the Project, Mr Cetin answered:

52. [83]

    The cross-examiner put to Mr Cetin that he had not said to Mr Tweedy during the conversation that CPG had not received any loan from Gemi. Mr Cetin answered:

53. [84]

    It was put to Mr Cetin that he was simply making that up. Mr Cetin denied this.

54. [85]

    Inconsistently with his evidence referred to immediately above, Mr Cetin gave evidence in cross-examination that he did say something to the effect that Gemi should have notified him “as the director or as the person that borrowed the money” and that Gemi “should have done it on the first go, like as soon as I took the loan out, they should have said this is what your repayments are monthly yeah to me, I’m the person taking the loan out yeah”.

55. [86]

    Despite having a poor recollection of the conversation and having no reason to doubt the accuracy of the typed note as a record of the conversation, Mr Cetin initially gave evidence in cross-examination that he or Mrs Cetin probably would have said to Mr Tweedy that they didn’t sign any documents or that their signatures had been forged. As I have already mentioned, no such statement is recorded in the typed notes. Later in his cross-examination, Mr Cetin accepted that he did not say that to Mr Tweedy. The following exchange then ensued between the cross-examiner and Mr Cetin:

56. [87]

    Mrs Cetin, who chose to remain in court throughout Mr Cetin’s cross-examination, was also cross-examined about the reasons why, in her affidavit evidence, she had excluded from her account of the conversation with Mr Tweedy those parts of the conversation recorded in the typed note referred to at [81] above. Mrs Cetin gave evidence that she had the typed note in front of her when she prepared her affidavit. She maintained that “core information” about the conversation was included in her affidavit, and denied having excluded those parts of the note on the basis that they were unhelpful to her in these proceedings. Mrs Cetin said that she could not recall the reasons why she had excluded those parts that were excluded. However, Mrs Cetin said later during her cross-examination that she “selected the parts that I believe was important for me” because “it’s my affidavit”, and that “to me what was included there was an important part of the conversation”. Mrs Cetin was unable to explain how she and Mr Cetin had selected exactly the same parts of the typed note to exclude from their account of the conversation with Mr Tweedy in their respective affidavits. Mrs Cetin did say that, “our accounts would be the same; we spoke to Hamish together”. However, this is not capable of explaining the identical terms of their selective accounts of the conversation in their affidavits prepared more than one year after the conversation.

57. [88]

    When asked why she did not tell Mr Tweedy that she claimed that her signature and Mr Cetin’s signature had been forged, Mrs Cetin said that she had tried to tell him that “in a roundabout way” by suggesting that he go through the documents “with a fine tooth comb”. Mrs Cetin confirmed that, at the time of the conversation with Mr Tweedy, she understood that Gemi was alleging that she and Mr Cetin were liable to repay the Loan to Gemi. She had inspected the Loan documents together with Mr Cetin, and claimed that they were fraudulent. Mrs Cetin was pressed to explain why, in those circumstances, she had not told Mr Tweedy, as Gemi’s representative, that she claimed to have been defrauded. Mrs Cetin answered that she believed Mr Tweedy was aware that she and Mr Cetin had inspected the documents and she assumed that he would have discussed them, or would discuss them, with Toltz Lawyers. I note that there is no evidence that Mr and Mrs Cetin had informed Toltz Lawyers at that time about their claim that their signatures on the Loan documents were forgeries. Although Mrs Cetin’s affidavit referred to “warnings” to Gemi and to Toltz Lawyers that the Loan documents had been forged, Mrs Cetin was unable to identify any such “warning” other than to tell Mr Tweedy that “there’s a lot of stuff that has happened on there that shouldn’t have happened legally and it’s not just and I think there’s more than one loan there that’s affecting us with you guys”.

58. [89]

    There was no further contact between Mr Tweedy and Mr and Mrs Cetin after their conversation on 15 April 2020.

59. [90]

    As referred to at [69]-[72] above, Mr Frank, solicitor, had written to Mr Jamal-Eddine on behalf of Mr and Mrs Cetin, Mr and Mrs Coskun, and CPG on 26 February 2020, seeking any letters or documents evidencing legal advice provided to them in relation to the Loan Agreement, Guarantees and Variation Deed in their capacity as borrowers and/or guarantors.

60. [91]

    On 6 May 2020, Mr Frank sent a further letter to Mr Jamal-Eddine in the following terms:

61. [92]

    Again, the letter does not suggest that any of the signatures on the Loan Agreement or related transaction documents were not genuine, or that any of Mr Frank’s clients did not in fact enter into the Loan Agreement, the Guarantees, or the Variation Deed.

62. [93]

    On 4 June 2020, Gemi served notices of demand and notices of default on Mr and Mrs Cetin.

63. [94]

    These proceedings were commenced by summons filed on 23 April 2021.

64. [95]

    Mr and Mrs Cetin filed a cross-claim on 30 July 2021 alleging that they did not sign, and Mr and Mrs Coskun did not sign, the Loan Agreement, the Guarantees or the Variation Deed, and that the signatures appearing on those documents are not in fact their signatures.

65. [96]

    That cross-claim has been overtaken by the cross-claim in substantially the same terms that was filed on 8 December 2021 after directions were made for the matter to proceed by way of pleadings. However, the earlier cross-claim is relevant because it is the first occasion on which Mr and Mrs Cetin communicated to Gemi an allegation that that their signatures, and Mr and Mrs Coskun’s signatures, had been forged. As I have already mentioned, there is no evidence that any such allegation was made to Gemi after Mr and Mrs Cetin inspected the transaction documents at the offices of Toltz Lawyers in November 2019. Neither Mrs Cetin’s 5 December 2019 email to Mr Toltz, nor her contemporaneous note of the conversation with Mr Tweedy on 15 April 2020, mention any such allegation. [7]

66. [97]

    As referred to at [64] above, Ms Cetin gave evidence in her affidavit sworn on 18 June 2021, that, when she reviewed the documents in November 2019, “I knew I didn’t sign these loans and guarantees and Rahmi confirmed he didn’t.” Mrs Cetin deposed that: “We have grave concerns about who was involved in this fraud and intend to take that up with authorities with the help of our current solicitors”. Mr Cetin gave evidence in identical terms in his affidavit sworn on 21 June 2021.

67. [98]

    In cross-examination, Mrs Cetin was asked about whether she and Mr Cetin had in fact taken any steps to raise their fraud allegations with relevant authorities. Mrs Cetin gave evidence that she believed that she had “attempted to raise it with AFCA” and that she had “attempted to raise it with another body” which might have been ASIC. Although Mrs Cetin said that “obviously if it’s fraud then I would consider police to be an option”, she had not approached the police about the forgery allegations.

68. [99]

    It is common ground that CPG has not made any repayments to Gemi in respect of the Loan. Gemi has recorded interest as accruing at the rate of 42% per annum. Mr and Mrs Cetin have not made any payments to Gemi in response to the demands made on 4 June 2020.

Consideration and determination

1. [100]

   Having considered all of the parties’ written and oral submissions, I have determined that Gemi is entitled to the relief sought under s 66G of the Conveyancing Act, and that Mr and Mrs Cetin’s cross-claim must be dismissed. I will explain my reasons as succinctly as possible, referring to the substance of the parties’ submissions where relevant, but without recording every detail of those submissions.

2. [101]

   As the applicant for an order under s 66G of the Conveyancing Act vesting the Property in trustees on statutory trust for sale, Gemi bears the onus of proving that it has a charge over the Property. To this end, Gemi relies on the Loan Agreement, the Variation Deed, clauses 4, 7 and 10 of the Guarantees of Mr Cetin and Mrs Cetin, and the undisputed facts that CPG has not made any repayments under the Loan Agreement and Mr and Mrs Cetin have not paid any part of the amount demanded on 4 June 2020. Gemi has tendered copies of the Loan Agreement, the Guarantees, and the Variation Deed, which appear on the face of them to have been executed by Mr Cetin as sole director of CPG and by Mr and Mrs Cetin as guarantors, and to have been signed by Mr Jamal-Eddine as witness to Mr and Mrs Cetin’s signatures as guarantors.

3. [102]

   Mr and Mrs Cetin contend that Gemi’s onus of proving that it has a charge over the Property is not discharged by the tender of the Loan Agreement, Guarantees and Variation Deed, because the signatures appearing above their names on those documents were not made by them, and are forgeries. As I noted at the outset of these reasons, that is the sole basis of Mr and Mrs Cetin’s defence to Gemi’s claim, and the sole basis of their cross-claim. [8]

4. [103]

   In closing submissions, counsel for Mr and Mrs Cetin correctly accepted that, as the parties alleging forgery, they bear the onus of proving that they did not sign the Loan Agreement, the Guarantees and the Variation Deed. [9] As counsel for Gemi correctly accepted, this does not necessarily require Mr and Mrs Cetin to advance a positive case identifying the person by whom, and the means by which, the alleged forgery was committed. Mr and Mrs Cetin did not advance any such positive case, although they did seek to cast suspicion on Mr Ilgun in a vague and indirect way, as referred to at [140] below.

5. [104]

   The Loan Agreement, Guarantees and Variation Deed were admitted into evidence without objection. I infer that the signatures described on those documents as signatures of Mr Jamal-Eddine – as witness to the signatures of Mr Cetin on the Loan Agreement and Variation Deed as sole director of CPG, and the signatures of Mr Cetin and Mrs Cetin as guarantors on the Loan Agreement, the Guarantees, and the Variation Deed – were in fact made by Mr Jamal-Eddine. I draw that inference on the basis of the contents of the documents themselves, together with the evidence that Mr Jamal-Eddine was copied into Ms Khattar’s email sent to Ms Byrne on 8 October 2018 attaching scanned copies of the documents bearing his signature as witness. [10] There is no evidence that Mr Jamal-Eddine, having received that email, disputed or disowned the signatures appearing to be his on the documents attached to the email. Instead, Mr Jamal-Eddine began liaising with Gemi’s solicitors, and conveyed to them his instructions about the disbursement of the net proceeds of the Loan on settlement. [11] I reject the submissions made by counsel for Mr and Mrs Cetin that the fact of Mr Jammal-Eddine being copied to Ms Khattar’s email casts doubt on whether he had signed the attached documents because it suggests that he did not already have copies of those documents. The inclusion of Mr Jamal-Eddine as a recipient of that email merely indicates that Ms Khattar decided to include him in her communications with Gemi’s solicitors in relation to the Loan. It was also submitted on behalf of Mr and Mrs Cetin that it was not clear how the Loan Agreement and Guarantee came to be held at Mr Ilgun’s office rather than Mr Jamal-Eddine’s office immediately before they were sent to Gemi’s solicitors, or why Mr Ilgun’s office rather than Mr Jamal-Eddine’s office sent the signed documents to Gemi’s solicitors. I also reject those submissions. Mr Ilgun was not merely CPG’s finance broker. As referred to at [52] above, Mr Ilgun was also a guarantor of the Loan. On the face of the Loan Agreement and Guarantees, they appear to have been signed by the borrower and all guarantors other than Mr Ilgun on 4 October 2018. Mr Ilgun was the last party to sign on 6 October 2018. That most likely explains why Mr Ilgun’s office collected all of the documents as they were signed, and then forwarded them to Gemi’s solicitors once the suite of documents was completed by Mr Ilgun’s signed guarantee.

6. [105]

   I draw the inference that Mr Jamal-Eddine signed the documents more readily in the absence of any evidence to the contrary from Mr Jamal-Eddine in these proceedings. Mr Jamal-Eddine is a witness who would be expected to be called by Mr and Mrs Cetin if they had wanted to establish that they did not sign the documents in his presence, and that the signatures appearing to be his are not in fact his signatures. That expectation arises from Mr and Mrs Cetin’s evidence of the conversation referred to at [66] above, in which they claim that Mr Jamal-Eddine told them in that “[i]t is not my signature and I would confirm this if there was any legal case about it”. There was no evidence to suggest that Mr Jamal-Eddine was not available to be called to give evidence. Each of Mr Cetin and Mrs Cetin gave evidence in cross-examination that, so far as they are aware, Mr Jamal-Eddine continues to practise as a solicitor. Mr and Mrs Cetin’s failure to adduce evidence from Mr Jamal-Eddine gives rise to an inference that his evidence would not have assisted Mr and Mrs Cetin. [12] However, contrary to the submissions made on behalf of Gemi, I do not consider that Mr and Mrs Cetin’s failure to call Mr Jamal-Eddine can properly be characterised as a deliberate withholding of evidence that may justify an inference that his evidence would have been unfavourable to them. Mr and Mrs Cetin were not under a duty or obligation to call Mr Jamal-Eddine, and I do not consider that their failure to do so was akin to the destruction, concealment or suppression of evidence. [13]

7. [106]

   Mr and Mrs Cetin’s evidence of the conversation referred to at [66] above does not assist them to establish that they did not sign the documents in Mr Jamal-Eddine’s presence, or that he did not sign the documents as witness to their signatures. First, the evidence was admitted subject to an order under s 136 of the Evidence Act 1995 (NSW) limiting the use of the evidence to evidence of the fact of the conversation, and not evidence of the truth of any fact asserted in the conversation. Second, the account of the conversation given by each of Mr and Mrs Cetin is in identical terms. It is inherently improbable that two witnesses independently recall a conversation in identical terms when making their affidavits approximately 18 months after the alleged conversation. [14] In the absence of any other explanation for the identical terms of their account of the conversation with Mr Jamal-Eddine, the identical terms of their evidence of the conversation points to the possibility that Mr and Mrs Cetin colluded about this aspect of their evidence. These matters diminish the weight of their evidence of the conversation to such an extent that I do not feel a sense of actual persuasion that the conversation occurred in the terms – or substantially in the terms – set out in their affidavits. [15] As referred to below, the identical terms of Mr and Mrs Cetin’s evidence was not limited to their account of the conversation with Mr Jamal-Eddine.

8. [107]

   Mr and Mrs Cetin did not adduce any evidence of a handwriting expert in support of the forgery allegation. Mr and Mrs Cetin rely on their own testimony in which they deny any knowledge of a loan from CPG to Gemi, deny signing the Loan Agreements, Guarantees and Variation Deed, and allege that the Loan and Gemi’s claim in these proceedings are “fraudulent”. [16]

9. [108]

   Mr and Mrs Cetin’s evidence denying any knowledge of a loan from CPG to Gemi, denying signing the Loan Agreements, Guarantees and Variation Deed, and alleging that the Loan and Gemi’s claim are “fraudulent”, was given in identical terms in their affidavits sworn on 18 June 2021 (in the case of Mrs Cetin) and on 21 June 2021 (in the case of Mr Cetin). Indeed, the whole of those affidavits were in identical terms, save for minor differences in wording that were necessary to reflect the different identity of the deponent. There was no evidence explaining how the affidavits came to be prepared and sworn in identical terms. As counsel for Gemi submitted, and as counsel for Mr and Mrs Cetin accepted, this makes it difficult for the Court to accept any of the identical evidence as the independent recollection of either witness as to whether or not CPG entered into the Loan and whether or not they signed the Loan Agreements, Guarantees and Variation Deed. That is because, in the absence of any other explanation, the identical terms of the affidavits points to a possibility of collusion between Mr and Mrs Cetin.

10. [109]

    In the present case, that risk of collusion is confirmed by the evidence given by Mr Cetin in cross-examination. Whilst maintaining that his affidavit had been prepared on the basis of his own recollection of events and denying that he and Mrs Cetin had specifically discussed the preparation or contents of their affidavits, Mr Cetin said that he had spoken with Mrs Cetin about the evidence that they would give in these proceedings “[m]aybe every day”. During those conversations, they had discussed whether or not each of them recalled signing the documents that they claim in these proceedings they did not sign. The cross-examination continued:

11. [110]

    The risk of collusion between Mr and Mrs Cetin concerning the substance of their evidence diminishes the value and weight of their denials that they signed the Loan Agreements, Guarantees and Variation Deed. [17]

12. [111]

    This difficulty is compounded by my finding that each of Mr and Mrs Cetin gave misleading and untruthful evidence about their conversation with Mr Tweedy on 15 April 2020.

13. [112]

    The parts of that conversation recorded in their own contemporaneous typed notes that they omitted from their identical account of the conversation in their affidavits sworn on 18 and 21 June 2021 are identified at [78] to [88] above. Those omissions came to light only after the typed notes were produced in response to a notice to produce issued by Gemi.

14. [113]

    The omitted parts of the conversation are unhelpful to the interests of Mr and Mrs Cetin in these proceedings.

15. [114]

    In one of the omitted parts, Mrs Cetin told Mr Tweedy that the proceeds of the Loan had “obviously … been used in some way for our construction”. As discussed further below, that is irreconcilably inconsistent with the suggestion propounded by Mr and Mrs Cetin in these proceedings, that the Loan was “fraudulent” and of no benefit to CPG.

16. [115]

    In other omitted parts, Mrs Cetin discussed with Mr Tweedy her calculations of how much was owing to Gemi in respect of the Loan, and Mr Cetin made statements referring to himself as the person who “took the loan out”. Those parts of the contemporaneous note are inconsistent with Mr and Mrs Cetin’s denial in these proceedings of any knowledge of the Loan and their denial of having signed the Loan Agreement, Guarantees, and Variation Deed.

17. [116]

    The omitted parts also record Mr Tweedy stating his understanding that Mr and Mrs Cetin had signed those documents, and Mrs Cetin’s response that “there was multiple signatures done”. That response would not convey to any reasonable person in Mr Tweedy’s position that Mr and Mrs Cetin were alleging that their signatures had been forged, as they now claim.

18. [117]

    As referred to at [82] above, it was put to Mr Cetin in cross-examination that it was misleading to omit from his affidavit that part of the conversation in which he referred to himself as the person who “took the loan out”. Mr Cetin did not accept that it was misleading, because “there was no Gemi loan to start with”. That answer indicates that Mr Cetin omitted that part of the conversation from his affidavit because it was inconsistent with his contentions, underpinning his defence and cross-claim in these proceedings that CPG did not enter into the Loan Agreement and that he did not enter into the Guarantees. That omitted part is material to the issues in dispute in these proceedings. I find that Mr Cetin deliberately omitted it, and that the omission was misleading.

19. [118]

    As referred to at [87] above, Mrs Cetin initially said that she could not recall why she had omitted from her affidavit parts of the conversation with Mr Tweedy recorded in the contemporaneous notes that she had in front of her when she prepared her affidavit. However, Mrs Cetin ultimately said that she “selected” the parts of the conversation to include in her affidavit based on what she believed was “important for me”. Having regard to the substance of the omitted parts of the conversation, which are plainly unhelpful to Mrs Cetin’s interests in these proceedings for the reasons already explained at [112] to [116] above, I find that Mrs Cetin deliberately omitted those parts of conversation that she knew would be unhelpful to her defence and cross-claim. This was misleading, and deliberately so.

20. [119]

    In cross-examination, each of Mr and Mrs Cetin gave other evidence about their conversation with Mr Tweedy that I consider was untruthful.

21. [120]

    As referred to at [83] above, Mr Cetin gave evidence that he and Mrs Cetin had “basically said” to Mr Tweedy that “we don’t believe it’s the, it’s our loan”. I reject that evidence because it is inconsistent with the contemporaneous, detailed, typed note of the conversation. I formed the impression at the time that Mr Cetin was making up his answer according to what he thought would assist his position in these proceedings, rather than answering the question on the basis of any memory that he has of the conversation. That was untruthful.

22. [121]

    Mr Cetin’s cross-examination revealed that he had only a limited recollection of the conversation with Mr Tweedy, yet he was initially willing to speculate that he or Mrs Cetin probably would have told Mr Tweedy that they did not sign any loan documentation, or that their signatures had been forged. That contention finds no support in the contemporaneous note, and Mr Cetin later accepted that he did not say this to Mr Tweedy, as referred to at [86] above.

23. [122]

    Mr Cetin then resorted to suggesting that, although he may not have used the word “fraud”, he had alluded to allegations of fraud and forgery by telling Mr Tweedy that “there’s a problem with the loan, that it hasn’t been done properly”. As referred to at [88] above, Mrs Cetin gave evidence to the same effect when she was cross-examined, after having observed the whole of Mr Cetin’s cross-examination.

24. [123]

    I reject that evidence of Mr Cetin and Mrs Cetin. It is highly implausible that a person who claims to believe that their signature has been forged on loan and guarantee documents, pursuant to which they face personal liability for hundreds of thousands of dollars unless their forgery allegation is upheld, would shy away from putting that allegation to the lender in clear and unequivocal terms at the earliest opportunity. A statement to the effect that “there’s a problem with the loan” or that the loan “hasn’t been done properly” does not serve that purpose. It leaves the lender guessing about what the alleged problem might be. In the present case, Mr Tweedy would not have had any reason to guess that Mr and Mrs Cetin were alleging forgery, because the documents appear on their face to have been signed by the borrower and guarantors, and their signatures appear to have been witnessed by a solicitor. That is all the more so in circumstances where, according to the contemporaneous note, Mr Tweedy stated that Mr and Mrs Cetin had signed the documents, and Mrs Cetin’s response – “there was multiple signatures done” – would have been understood by any reasonable person in Mr Tweedy’s position as confirming that the named signatories had in fact signed the documents. Contrary to the submissions made on behalf of Mr and Mrs Cetin, they had moved beyond the stage of “trying to work out what had happened” by the time they spoke to Mr Tweedy. They had reviewed the documents approximately six months earlier, [18] they had attempted to negotiate arrangements for the partial repayment of the Loan with Gemi, [19] and they had taken steps to investigate a potential claim against Mr Jamal-Eddine for negligent advice given to them, or negligent failure to advise them, in relation to the Loan and Guarantees. [20]

25. [124]

    I assess Mr Cetin’s evidence suggesting that he made an allegation of fraud or forgery in such vague terms as an attempt to put an inaccurate spin on the contemporaneous record of the conversation that might then cover over the glaring inconsistencies between that record and the claims that Mr and Mrs Cetin now make in these proceedings, when confronted with those inconsistencies in cross-examination. That was untruthful.

26. [125]

    I assess Mrs Cetin’s evidence to similar effect as an attempt to achieve the same objective, and in a manner that was consistent with the substance of Mr Cetin’s evidence in cross-examination, which she had observed. That was also untruthful.

27. [126]

    In circumstances where Mr and Mrs Cetin have discussed the substance of the evidence that they would give in these proceedings about whether they signed the Loan Agreement, Guarantees and Variation Deed, they have sworn affidavits in identical terms, including an account of an important conversation that is misleading in its deliberate omission of parts of the conversation that are unhelpful to them in these proceedings, and they have each given untruthful evidence about those omissions and about that conversation in cross-examination, I do not accept evidence given by either of them unless it is corroborated by contemporaneous documents or some other reliable source, it is inherently probable, or it is contrary to their interests in these proceedings. I do not regard either of Mr and Mrs Cetin as a reliable source to corroborate the evidence of the other.

28. [127]

    Mr and Mrs Cetin’s evidence denying any knowledge of the Loan and alleging that the Loan was “fraudulent” is highly implausible, having regard to the following facts which are established on the balance of probabilities by the evidence summarised above.

29. [128]

    First, CPG had borrowed $350,000 from PMC in April 2018 for the purpose of the Project. PMC is a company associated with Mr Ilgun. I make those findings on the basis of the executed loan agreements between PMC (as lender) and CPG (as borrower) referred to at [14] above and the evidence referred to at [15] above.

30. [129]

    Second, as at September 2018, the Project was slightly over budget and CPG required additional funds to complete it. I make that finding on the basis of Mr Cetin’s evidence referred to at [16] and [27] above.

31. [130]

    Third, Mr Cetin attended a meeting at Gemi’s offices in September 2018, together with Mr Ilgun, for the purpose of CPG seeking a loan from Gemi for funds to finish the Project. Mr Cetin knew that this was the purpose of the meeting at the time that he attended it. Mr Ilgun was acting as Gemi’s finance broker in arranging the meeting and seeking the loan for CPG. Mr Ilgun had approached Gemi through another broker, Mr Margi. I make those findings on the basis of Mr Cetin’s evidence about Mr Ilgun’s role referred to at [10] and [11] above, Mr Cooper’s evidence referred to at [20] to [24] above and Mr Cetin’s evidence about the September 2018 meeting referred to at [27] above.

32. [131]

    Fourth, the amount of the loan that CPG sought from Gemi through Mr Ilgun, who approached Gemi through Mr Margi, was $350,000. That corresponded with the amount that CPG had borrowed from PMC in April 2018. Mr Ilgun had decided that he wanted those monies to be repaid to PMC. I make those findings on the basis of Mr Margi’s email referred to at [17] above and Mr Cooper’s evidence referred to at [21] to [24] above.

33. [132]

    Fifth, the amount of the loan that CPG sought – $350,000 – was discussed at the meeting with Gemi in September 2018. I make that finding on the basis of Mr Cooper’s evidence referred to at [20] to [24] above. I reject Mr Cetin’s evidence referred to at [30] above that there was no discussion about “what was being borrowed”. It is inherently improbable and implausible that the amount of the proposed loan was not discussed at a meeting convened between representatives of the prospective borrower and prospective lender for the very purpose of the borrower seeking to advance its case for a loan from the lender.

34. [133]

    Sixth, Mrs Cetin arranged for the property agency at which she and her daughter worked in September 2018 to issue appraisals of the value of the properties that were to be security for the proposed loan from Gemi. I make that finding on the basis of the documentary evidence and Mrs Cetin’s evidence referred to at [33] to [36] above. I infer that Mrs Cetin knew that the appraisals were required for the purpose of a loan application. I draw that inference because Mr Ilgun, who was acting as CPG’s finance broker, asked her to procure the appraisals, Mrs Cetin acknowledged in cross-examination that she knew that a loan application was a possible reason why the appraisals were required, and she could not identify any other reason why Mr Ilgun had enlisted her to procure the appraisals.

35. [134]

    Seventh, Mrs Cetin received the email referred to at [42] above from Mr Ilgun on the morning of 10 October 2018. The email specified a bank account in the name of PMC as the “Bank account details Cetin Group”. On the basis of Mrs Cetin’s evidence referred to at [43] above that she checked her emails on a regular basis, I find that she read that email within a reasonable period of time after it was received in her email account. It is not surprising that Mrs Cetin cannot now recall doing so, some four and a half years after the event. Having regard to Mr Ilgun’s role as CPG’s finance broker and my findings in relation to the sixth matter above, I infer that Mrs Cetin understood when she read the email that it concerned payment details for a loan being made to CPG. As referred to at [43] above, Mrs Cetin gave evidence that, if she had seen the email at the time, she would not have asked any questions about it because she and Mr Cetin trusted Mr Ilgun such that “if we were refinancing or if we were getting a loan, that he would be doing the process of getting the loan”. I infer from that evidence, together with the evidence referred to in relation to the sixth matter above, that Mrs Cetin knew in September and October 2018 that CPG was in the process of obtaining a loan brokered by Mr Ilgun.

36. [135]

    Eighth, CPG completed the Project in late 2019, as referred to at [12] above. Neither Mr Cetin nor Mrs Cetin has given evidence that CPG obtained the funds that it required in September 2018 to complete the Project from any source, other than the loan in respect of which Mr Cetin approached Gemi in September 2018. Whilst Mrs Cetin conceded in cross-examination that Mr Ilgun had contributed some of the money that he claimed to have contributed to the Project, she maintained that the majority of the contributions that he claimed to have made in correspondence in July 2019 were incorrect.

37. [136]

    As I have already stated, those objective facts, taken together, render Mr and Mrs Cetin’s evidence denying any knowledge of the Loan, highly implausible. I reject Mr and Mrs Cetin’s evidence.

38. [137]

    Mr and Mrs Cetin’s evidence emphasised that, so far as they are aware, CPG did not receive any funds from the Loan. That is not to the point. As referred to at [44] above, the loan amount of $350,000 was in fact paid to the bank account of PMC in accordance with the payment instructions recorded in the emails referred to at [40] to [42] above. I infer that this discharged CPG’s liability to repay the loan of $350,000 that I have found CPG owed to PMC pursuant to the loan agreements entered into in April 2018. Contrary to the submissions made on behalf of Mr and Mrs Cetin, the payment of the net proceeds of the Loan to PMC is not “circumstantial evidence” supporting their contentions that their signatures on the documents were forged and that they did not know about the Loan.

39. [138]

    Mr and Mrs Cetin also emphasised that CPG did not receive any funds from the Variation Deed. That is also irrelevant. There were no funds to be paid under the Variation Deed. The amount of the Additional Facility provided for in the Variation Deed was the capitalised interest payable by the borrower in advance for the five-month period by which the term of the Loan was extended, plus the amount of fees payable to the lender and brokers in respect of the extension.

40. [139]

    The notion that the Loan was “fraudulent”, and was taken out without the knowledge of Mr and Mrs Cetin, and for some unidentified purpose that did not benefit CPG, is fundamentally inconsistent with the facts that Mr Cetin participated in the meeting that initiated the loan application process with Gemi at a time when CPG needed a loan in order to complete the Project, Mrs Cetin was one of the recipients of Mr Ilgun’s email stipulating the PMC bank account details into which the net proceeds of the Loan were to be paid, and those net proceeds repaid amounts owing by CPG to PMC under the April 2018 loan agreements (or, alternatively, were “obviously … used in some way for our construction” as Mrs Cetin told Mr Tweedy during their conversation on 15 April 2020). It is highly improbable that unidentified fraudsters would carry out the alleged fraud in this manner.

41. [140]

    Through their evidence of the conversation that they claim to have had with Mr Jamal-Eddine referred to at [66] above, which I have rejected at [106] above, Mr and Mrs Cetin sought to indirectly cast suspicion on Mr Ilgun for the alleged fraud. Neither the evidence nor their submissions identified any reason why Mr Ilgun would have personally guaranteed CPG’s obligations under the Loan Agreement, or why the proceeds of the Loan would have been “used in some way for our construction” as Mrs Cetin told Mr Tweedy, if Mr Ilgun had orchestrated the transaction as a fraud on CPG. The evidence relating to Mr Ilgun’s guarantee is referred to at [52] above.

42. [141]

    The conduct of Mr and Mrs Cetin after their review of the material in Gemi’s file on or about 8 November 2019 is irreconcilably inconsistent with their evidence in these proceedings in which they claim to have realised at the time of that review that their signatures had been forged.

43. [142]

    As referred to at [68] above, Mrs Cetin wrote to Gemi’s solicitor approximately one month after inspecting Gemi’s file confirming that “the loan signed on 4th October 2018 was used to pay Property Management Corporation”, arguing that the sale of the completed townhouses on 23 Railway Parade would produce “more than sufficient surplus to cover the Gemi Loan”, and requesting Gemi to remove its caveats from the title to 25 Railway Parade to facilitate the impending settlement of the sale of that property on the basis that Mr and Mrs Cetin would pay 50 per cent of the net sale proceeds to Gemi.

44. [143]

    As referred to at [75] and [79] above, Mr and Mrs Cetin initiated a conversation with Mr Tweedy of Gemi on 15 April 2020 in which they aired their complaints about the Loan. Mr and Mrs Cetin did not tell Mr Tweedy that they alleged their signatures had been forged. According to their own contemporaneous record of the conversation, Mr and Mrs Cetin made several statements to Mr Tweedy that expressly or implicitly accepted that CPG had entered into the Loan and that they had entered into the Guarantees, and that monies were owing to Gemi under the Loan Agreement and those Guarantees.

45. [144]

    As referred to at [69] to [72] and [90] to [92] above, solicitors acting for CPG, Mr and Mrs Cetin, and Mr and Mrs Coskun, sought information and documents from Mr Jamal-Eddine in February and May 2020 for the purpose of investigating a potential negligence claim against Mr Jamal-Eddine in respect his advice given to them, or his failure to advise them, in relation to the Loan Agreement and Guarantees. A claim of that nature is predicated on the borrower and guarantors having entered into the Loan Agreement and Guarantees. The fact that Mr and Mrs Cetin’s solicitors were investigating that potential claim – I infer, on their clients’ instructions – is wholly inconsistent with Mr and Mrs Cetin’s evidence in these proceedings that they did not sign those documents, and that they knew from 8 November 2019 that their signatures had been forged.

46. [145]

    In addition to all of the matters referred to above, Mr Cetin’s evidence denying that he signed the Loan Agreement was further undermined by his evidence in cross-examination referred to at [54] above. Upon being shown the two signatures attributed to him on the face of the Loan Agreement, Mr Cetin said that those signatures were probably his signatures. Mr Cetin was not aware that this evidence was contrary to his interests in these proceedings, as the cross-examiner did not identify the document shown to him as one the documents that Mr and Mrs Cetin dispute in these proceedings.

47. [146]

    For the reasons explained at [104] above, I have found that Mr Jamal-Eddine did sign the Loan Agreement, Guarantees and Variation Deed as witness to the signatures of Mr Cetin as sole director of CPG, and as witness to the signatures of Mr Cetin and Mrs Cetin.

48. [147]

    I acknowledge that Mr and Mrs Coskun’s evidence, together with the objective evidence that they were overseas at the time when Mr Jamal-Eddine signed the Loan Agreement, Guarantees and Variation Deed as witness to Mr and Mrs Coskun’s signatures, suggests that he did not in fact witness Mr and Mrs Coskun signing those documents in his presence. On the other hand, Mrs Cetin’s evidence that she knew or believed from the time that she inspected the documents on 8 November 2019 that her parents’ signatures had been forged is very difficult to reconcile with the evidence that she did not bring this to Gemi’s attention in her correspondence about the Loan on 5 December 2019 and she did not mention it to Mr Tweedy during their conversation on 15 April 2020. [21] If Mrs Cetin had believed that her parents’ signatures had been forged, that is the sort of thing that one would ordinarily expect her to bring to the attention of the lender who might otherwise take steps to enforce the Guarantees against her parents. However, it is not necessary to make any finding about whether or not Mr and Mrs Coskun’s signatures were forged. Gemi’s claim in these proceedings is founded on the indebtedness of CPG under the Loan Agreement, and on the enforceability of Guarantees given by Mr and Mrs Cetin only. By reason of clause 15 of the Guarantees, [22] Mr and Mrs Cetin’s liability under their Guarantees will not be affected by any future finding that may be made about Mr and Mrs Coskun’s Guarantees in other proceedings to which Mr and Mrs Coskun are parties. Contrary to the submissions made on behalf of Mr and Mrs Cetin, any finding in these proceedings that Mr and Mrs Coskun did not sign the Loan Agreement, their Guarantees or the Variation Deed, would not support an inference that Mr and Mrs Cetin’s signatures on those documents had been forged. Any such inference would be contrary to the weight of the evidence referred to at [127] to [145] above.

49. [148]

    Counsel for Mr and Mrs Cetin submitted that the notion that they would have signed documents which were also required to be signed by Mr and Mrs Coskun, at a time when Mr and Mrs Cetin knew that Mr and Mrs Coskun were overseas, was implausible. I reject that submission, which is premised on an unproven assumption that Mr and Mrs Cetin did not understand, and were not advised at the time, that the Loan Agreement would be binding on CPG, and that their Guarantees would be binding on them, irrespective of whether Mr and Mrs Coskun signed the documents, if Gemi was content to advance the funds. The objective facts are that the Project was in need of funds at that time, and Mr Cetin had approached Gemi for a loan. It is entirely plausible that Mr and Mrs Cetin signed the Loan Agreement and Guarantees in the hope that the Loan would proceed, irrespective of whether they believed that Mr and Mrs Coskun would also sign the documents.

50. [149]

    For all of the reasons explained at [104] to [148] above, Mr and Mrs Cetin have failed to discharge their onus to prove on the balance of probabilities that their signatures appearing on the Loan Agreement, on the Guarantee relating to Mr Cetin, on the Guarantee relating to Mrs Cetin and on the Variation Deed were forgeries. As it is common ground that CPG has not made any repayments under the Loan Agreement (as varied), and that none of the guarantors have made any payment in response to Gemi’s demands issued under the Guarantees, Gemi has discharged its onus of proving that it has a charge over the Property.

51. [150]

    It follows that Gemi is an “incumbrancer” in respect of the interests of Mr Cetin and Mrs Cetin in the Property and a “co-owner” of the Property within the meaning of s 66G of the Conveyancing Act. [23]

52. [151]

    The Court has a discretion under s 66G of the Conveyancing Act to make an order appointing trustees for sale on the application of Gemi. It is well established that the grounds on which the Court will ordinarily decline to make an order are limited. Those grounds include where the order would be inconsistent with a proprietary right, or a contractual or fiduciary obligation, or an equitable or conventional estoppel against the application. There is no general jurisdiction to refuse to grant an order under s 66G on the basis of hardship or unfairness. It is for this reason that the discretion under s 66G is described as a “limited discretion”. [24] It is for a co-owner who opposes the making of an order under s 66G to establish a reason why the order should not be made. [25]

53. [152]

    Neither Mr and Mrs Cetin, nor their co-owners of the Property, raised any ground of opposition to the exercise of the discretion to make the orders sought by Gemi in the summons – including the orders under s 66G of the Conveyancing Act and an order under s 74MA of the Real Property Act 1900 (NSW) requiring Mr Cetin to withdraw the caveat that he lodged against the Property on or about 29 October 2019 – in the event that Mr and Mrs Cetin’s defence and cross-claim of alleged forgery failed. Nor was any objection raised by Mr and Mrs Cetin or their co-owners to Gemi’s proposed appointees – Ms Nicola Craven, solicitor, and Mr Joseph Daidone, real estate agent. Gemi read an affidavit of each proposed appointee as to their qualifications and experience which renders them suitable to be appointed as trustees of the Property on statutory trust for sale. Gemi read affidavits of two referees for each appointee. Those affidavits confirm the suitability of the proposed appointees. No submission was made on behalf of Mr and Mrs Cetin objecting to the proposed trustees, or the terms of the orders sought by Gemi, in the event that Gemi were held to be entitled to an order under s 66G of the Conveyancing Act.

Conclusion and orders

1. [153]

   For all of those reasons, the orders of the Court are as follows:

   1. (1)

      An order pursuant to s 66G of the Conveyancing Act that the whole of the land at 1/21 Railway Parade, Lidcombe in the State of New South Wales, being the land contained in Folio Identifier 1/SP64344 (the Property), be vested in Nicola Craven, solicitor, and Joseph Daidone, estate agent (collectively the Trustees) subject to encumbrances affecting the entirety but free from encumbrances affecting any undivided shares, to be held by them on the statutory trust for sale.

   2. (2)

      An order that the defendants provide to the Trustees vacant possession of the Property within 28 days of making this order.

   3. (3)

      An order that the first defendant withdraw caveat AP645286 within 28 days of the making of this order.

   4. (4)

      An order that upon the sale of the Property, the sale proceedings be applied as follows:

   5. (5)

      An order pursuant to s 66H of the Conveyancing Act that any of, and any combination of, the defendants may purchase the Property at a sale conducted by the Trustees, whether at auction or otherwise, on terms on which permit the purchasers to set off those purchasers’ entitlement to proceeds from the sale as against the purchase price of the Property.

   6. (6)

      Liberty to apply on 3 days’ notice to the parties, the Trustees and any other person claiming an interest in the sale proceeds of the Property.

   7. (7)

      Order that the cross-claim is dismissed.

2. [154]

   I will hear the parties in relation to costs.